The Status of In-Store Performances & Easing Restrictions on Low-Power Radio Stations

Spring has sprung with a flourish, the sun is bright and the air is mild, moods are high, flowers are blooming and the region’s’ peak music season, including the New Orleans Jazz & Heritage Festival, is just around the corner.

It’s also that special time of year when City of New Orleans officials tend to get a little overzealous in their treatment of Vieux Carre music shops that offer live, in-store artist performances free-of-charge.

You may recall last spring when city zoning officers threatened arrest at Louisiana Music Factory on Decatur Street – just a stone’s throw from the House of Blues – because of a zoning ordinance on the books prohibiting in-store performances on that particular side of the street. There also were questions about noise levels and whether the stores should have been collecting the five percent (it has since been reduced) amusement tax on sales during the shows (even though most of the performances were free and the city receives sales taxes on any purchases).

In the recent past, Louisiana Music Factory, Tower Records and Virgin Megastore have been subjected to numerous threats for staging live shows to promote new releases or to help a visiting artist stimulate sales. The stores, which host more of these types of performances during Jazz Fest season when thousands of tourists crowd the city, all are located on the river side of Decatur Street in the general vicinity of many live-music venues such as HOB, Tipitina’s French Quarter and Levon Helm’s Classic American Cafe.

Louisiana Music Factory’s Jerry Brock says he doesn’t really expect any enforcement activity on the city’s end this year, despite the fact that the issue was left in limbo last fall. But he has no guarantee.

Last spring he filed suit against the city in state district’ court and won a temporary injunction banning zoning officials from threats of fines or arrests; that injunction was lifted in October when the State Supreme Court kicked a related issue, the constitutionality of the city’s amusement tax on live music, back to the district court level. In issuing the injunction, Judge Robert Katz tied the in-store question to the amusement tax case by ruling that the city could take no further actions against the stores until the State Supreme Court issued its ruling on the tax.

Last summer, New Orleans Councilman Troy Carter, whose district includes the Vieux Carre, began drafting an ordinance that would outline rights and regulations for shops offering live in-store performances. He received input on the subject from local store owners and the Louisiana Music Commission, but no new legislation was debated, passed or rejected at City Hall.

“There is no ordinance currently that makes it okay to have the performances,” says Brock. He calls the issue a “moot subject at this time.”

We’ve had the performances for eight years now,” he points out. “It’s nothing new. It’s nothing that stores haven’t been doing for a century in New Orleans.” He says the threat of future harassment “is always a concern, but nothing has been shown that I should be specifically concerned right now. We’re going about business as usual”.

In most cases, the artists perform for free, confident that the gigs will generate record sales and greater name recognition. According to the state music commission, a typical performance can generate an average of 20 to 30 record sales for the artist and his record company. During Jazz Fest season, performance-related sales can rise to more than 100 at a single show. The events are similar to book-signings as consumers seek autographs and sometimes chat with their favorite musicians.

Despite the lack of action on Carter’s proposed ordinance and the lack of guarantees of a ban on future enforcement episodes, Brock is optimistic about the situation. “I would be surprised if the city brought this up again without first discussing it with the people involved,” he adds.

It’s probably a long shot, but the Louisiana Music Commission is trying to set up a debate this month on a proposal to ease restrictions on the licensing of low-power radio stations nationwide.

Steve Picou, the commission’s assistant director, says LMC Chairman Ellis Marsalis, Jr. has invited the head of the Federal Communications Commission, William Kennard, to New Orleans during the upcoming Louisiana Music-New Orleans Pride Conference (April 25-28) to discuss the issue at a public forum. LMNOP, an annual event started by Austin resident and South by Southwest founder Louis Jay Meyers, is in its third year in New Orleans and provides numerous forums and workshops on the music business.

U.S. Rep. Billy Tauzin, R Chackbay, also has been invited to participate in the forum. Tauzin chairs the House Subcommittee on Telecommunications, and he and the National Association of Broadcasters oppose the proposed change in FCC rules on low-power radio, citing signal interference as their main concern.

The LMC has taken the preliminary position that the emergence of low-power radio stations would be a boon to the Louisiana music industry. “As a jazz musician,” Marsalis wrote to Kennard, “I know all too well how difficult it is to get my music onto ever-tighter radio playlists. As the industry has consolidated into fewer and fewer hands, access to radio for new and independent artists has become more restricted. Low-power FM stations could thus be a valuable resource to help musicians reach wider audiences and therefore be more likely to earn a living and pay taxes.”

Picou says that although there are potential drawbacks to low power radio (the Klan might suddenly find it affordable to launch WKKK), new rules are needed to break the stranglehold on the airwaves enjoyed by commercial stations. “There is more homogenization on the dial today than anyone has ever seen,” he says. “The NAB is howling at the ‘top of their lungs against this, saying it’s going to pollute the airwaves. What they really mean is they don’t want competition.”

Transformation of the radio scene is already underway, he notes, with cable television and Internet providers piping music services into homes. “Kennard is trying to do something that makes a lot of sense, especially in areas that don’t have a lot of radio,” adds Picou.